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ELCAllowedEnvironment & Land Case 321 of 2015· [2023] KEELC 16392 (KLR)

Cherotich Kiprono Ruto v Reuben Kipngetich & 4 others

Environment and Land Court
16 March 2023
LOL. A. Omollo
2,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a land defendant's expert from testifying because he was never disclosed before trial — no ambushes allowed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (L. A. Omollo, J) determines an interlocutory objection raised by the plaintiff's advocate during the defence case, challenging the competence of the defendants' expert witness (DW2, Emmanuel Karisa Kenga) to testify. The plaintiff sought temporary and permanent injunctions and vacant possession of L.R Number Molo South/Keringet Block 2/114 (Kirobon); the defendants claimed possession since 1987 through their father's purchase. The plaintiff objected that no expert witness was disclosed in the pre-trial questionnaire under Order 11 Rule 2 of the Civil Procedure Rules, that the expert's opinion was sought on Exhibit P2(b) only after the plaintiff had testified and closed her case, and that the undisclosed evidence was prejudicial and unfair. The defendants contended that leave granted on an application dated January 27, 2021 to file a supplementary list of documents covered the expert's documents. The court found the application did not disclose any expert report and that counsel for the defendants had misrepresented facts. Applying Order 11 Rule 2, Order 3 Rule 2 and Order 7 Rule 5, and following Luckwell v Limata and Mansukhalal Jesang Maru v Frank Wafula (which relied on Raila Odinga, Johana Kipkemei Too and Alois Oceano D'sumba), the court held that procedural rules prevent ambush and guarantee a fair trial. The plaintiff had no opportunity to rebut or seek a contrary opinion. The objection was upheld and DW2 was excluded from giving evidence and producing his report. No costs order was made.

Key legal issues

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Whether an undisclosed expert witness may testify after the plaintiff has closed her case

Holding

DW2 was disqualified from giving evidence and producing his report because he was never disclosed in the pre-trial questionnaire or supplementary documents, and his evidence would prejudice the plaintiff who had closed her case.

Reasoning

Order 11 Rule 2 requires parties to complete and file pre-trial questionnaires disclosing, among other things, whether an expert report is required. The plaintiff's questionnaire bore no such mark and the defendants filed none. The application of January 27, 2021 sought leave only for a supplementary list of documents and did not disclose an expert report. The opinion was sought on a document already produced by the plaintiff, denying her a chance to obtain a contrary opinion. Procedural rules exist to prevent ambush and secure a fair trial.

Legal principles established

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  • Parties must disclose expert witnesses and reports at the pre-trial stage; introducing an undisclosed expert witness after the plaintiff has closed her case is in bad faith and prejudicial.

Court orders

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  1. 1.The plaintiff's objection to the defendant's expert witness (DW2) is upheld
  2. 2.DW2, who had been stood down, is excluded from giving evidence and producing his report

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Civil Procedure RulesOrder 11 Rule 2
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 3 Rule 2
  • Evidence Act

Cases cited (5)

  • Luckwell vs Limata
    [2014] EWHC 536

    Court may exclude a witness where, for good reasons, exclusion is appropriate; threshold not high.

  • Mansukhalal Jesang Maru v Frank Wafula
    [2021] eKLR

    Declining evidence/documents filed outside the rules after close of the plaintiff's case.

  • Raila Odinga & 5 others v IEBC & 3 others
    Petitions Nos. 3, 4 and 5 of 2013 (2013) eKLR

    Prejudice to adverse parties justifies declining additional evidence filed outside the rules.

  • Johana Kipkemei Too v Hellen Tum
    [2014] eKLR

    Leave to furnish supplementary list of witnesses and documents after plaintiffs closed their case declined.

  • Alois Oceano D'sumba v Rajnikant Narshi Shah & another
    [2017] eKLR

    Allowing defendant to rely on documents filed after plaintiff testified would perpetrate injustice.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; ruling on trial procedure under the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cherotich Kiprono Ruto v Reuben Kipngetich & 4 others", Case Analysis (2023). Environment & Land Case 321 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16392/eng@2023-03-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.